Step 4 involves prioritizing values where conflicts exist.
The decision arising from the prioritization of values is
influenced by the philosophical orientation of the person
making the decision. In this particular case, if Jill follows
the deontological perspective which places the duties and
rights of persons as most important, she will choose not to
alter her documentation as this action will put the patient’s
needs and rights first. If Jill follows the utilitarian
perspective which would require her to commit to an action
that is satisfying to a majority, she will choose to make
changes in her documentation to protect the facility from a
potentially expensive litigation and loss of reputation.
Step 5 involves the development of a plan that reflects the
ethical decision-making process noted in Step 4. In this
particular case, it appears that Jill would make a decision
not to alter the medical record as the most appropriate course
of action. However, it is possible for Jill to engage in
“creative” problem solving that might be acceptable to both
sides (“moral creativity”). It may be possible for Jill to
write a late entry on the medical chart to more appropriately
reflect the treatment received by Mary the previous day. This
would avoid the legal and ethical consequences of altering the
medical chart, and at the same time allow Jill and the
facility to strengthen their documentation skills to
strengthen their contention that the injury was not a result
of negligence on their part.
Step 6 involves the implementation of the course of action
determined in Step 5. In this step, Jill will put a late entry
in the chart. It is also in this step that she reassesses the
consequences of her actions in and the social and
environmental impact. She may have to look at her relationship
with the Director of Nursing and Administrator, and possibly
look for another job if her decision has negatively impacted
her working relationship with the individuals.
Part 2: Legal Analysis
There are two issues that require analysis from a legal
perspective. The first is Mary’s injury that consequently led
to her death, and second, the falsification of medical records
by Jill and Edith. The legal analysis will follow the four
elements of negligence discussed by Swisher and
Krueger-Brophy.2
Issue No. 1: Mary’s injuries: Analysis on the Elements
of Negligence
Element 1: Duty. Legal duty is established in the therapy
context when there is a patient-therapist relationship. There
may be arguments on both sides to indicate that Jill is
negligent in her duty as a physical therapist. Clearly, Jill
and Mary have a patient-therapist relationship because Jill
had been providing physical therapy interventions for the
patient. However, one factor to consider is whether the
alleged act of omission (not putting the call light within the
patient’s reach) happened during the time that Jill was
performing her professional duty to Mary. In this light, a
technical question to consider is to determine when the actual
PT intervention ended. Did Jill’s intervention end in the PT
area before Mary was transported back to her room, or did Jill
perform other patient-related tasks when she transported the
patient back (transfer training, bed mobility, etc.) to her
room? If the intervention did not end until Jill left Mary’s
room, then not giving the call light to the patient was
clearly during the intervention session, and thus, Jill may be
held liable for this incident.
What happens then if there was “negligence” performed by a
PT while doing non-PT related tasks in the facility? What if
Mary was NOT on the physical therapy caseload, and Jill just
happened to help the patient go back to her room then failed
to give her the call light? She may not be liable as a PT
because there is NO patient-therapist duty. Would this line of
reasoning be acceptable if we assume that the physical therapy
intervention ended prior to Mary being transported back to the
room?
Is the Skilled Nursing Facility institution responsible for
this incident? When the facility accepted Mary as a patient,
it entered into a contract with her to provide care. The
facility had a duty to provide Mary with medical care, while
Mary had a duty to pay the establishment for the services
rendered. This incident is clearly a breach of that contract,
and as such, the facility failed to provide an acceptable
level of care for the patient. Jill may not be liable as a
physical therapy professional, but the facility is liable in
Jill’s capacity as an employee of the institution.
Element 2: Breach of Duty: Standard of Care. The second
element in determining negligence is whether Jill met the
standard of care. Did she act in a reasonable manner given the
circumstances as compared to what another prudent therapist
would do? Mary’s fall and consequent injury leading to her
death may be viewed as NOT directly a result of the physical
therapy intervention given to Mary. Giving the call light to a
patient does not require the skills and expertise of a
physical therapist, and as such, Jill may not be responsible
for the incident in her capacity as a PT. On the other hand,
assuming that Jill really failed to put the call light within
Mary’s reach, does that act of “negligence” fall within her
scope of practice? Does Jill's act of omission violate the
acceptable standard of care both of the facility and the APTA
code of ethics? APTA Code of Ethics, Principle 3 reads: “PTs
accept responsibility for the exercise of sound judgment”. Not
putting the call light close to the patient is obviously NOT
sound judgment.
What would another prudent therapist do? Most likely, this
therapist would make sure that the patient is safe and
precautions have been put in place (i.e. making sure that the
call light is within the patient’s reach) before leaving the
patient. If such is the case, then Jill clearly failed to
provide the standard of care to Mary. Moreover, assuring that
the call light is within the patient’s reach is a standard of
care in skilled nursing facilities. This facility has a policy
on call lights, which is clearly outlined in the Policy and
Procedures manual. Jill clearly violated the standard of care
of her profession and her facility.
Is the facility negligent in providing care within the
acceptable standards? Whether the fall happened partially as a
result of patient’s lapse in judgment, the fact of the matter
was that the injuries to the patient while under the
facility’s care indicates a failure to provide care within
acceptable standards. This argument may be strengthened by
documentation which indicated that the facility was
short-staffed that day (below the acceptable industry
standards), and the evaluation of the patient’s mental status
(she appeared to be alert, oriented, not confused, able to
follow directions), and fall risk profile (they had
established that the patient is a high fall-risk and therefore
extra measures should have been enforced to ensure the
patient’s safety).
Elements 3 and 4: Causation and Harm. The third element of
negligence indicates that the action of the therapist caused
the injury. The fourth element indicates that the injury
caused harm to the patient. In this case, the patient stated
that the reason why she got up from her wheelchair despite
previous instructions not to was that the call light was not
placed within her reach and that there was no one around to
call. It was reasonable to conclude that she would have not
gotten up if the call light was within her reach. Therefore
the cause of her fall may be attributed to the improperly
placed call light by Jill. The facility is liable because it
failed to provide the patient with a safe environment. Even if
a direct causation cannot be established, the fact that the
injury occurred must show that there was negligence on the
part of the therapist and the facility (doctrine of res ipsa
loquitur, “the thing speaks for itself”, which refers to
situations when it is assumed that a person’s injury was
caused by negligence of another party because the incident
would not have occurred unless someone was negligent). The
fact that the patient suffered injuries which caused her death
indicates that the incident caused harm to the patient.
In the final analysis, it appears that the four elements of
negligence are present in this case, indicating that both Jill
and the facility are liable for Mary’s injury and consequent
death.
Other case laws related to alleged negligence by physical
therapists also reflected on these four elements of
negligence. In McAvenue v. Bryn Mawr Hospital,3 a patient fell
while undergoing physical therapy treatments. The expert
witness for the appellant testified on cross examination that
in his opinion, the fracture of the appellant’s leg was a
stress or spontaneous fracture caused by the appellant’s loss
of calcium, causing her bone to spontaneously fracture,
causing the fall. The trial court stated that:
“The general test of liability is whether the injury could
be foreseen by an ordinary intelligent man as the natural and
probable outcome of the act complained of…Negligence is the
want of due care under the circumstances. The sole test of
negligence is whether the conduct of the person under scrutiny
conforms to the standard of the reasonably prudent.”
In Griffin v. The Methodist Hospital,4 the patient brought
medical malpractice against the hospital, claiming that
negligent treatment caused achilles tendon contracture.
Affidavits submitted by the nurse and physical therapist on
hospital’s motion for summary judgment on the patient’s
malpractice claim were conclusory, and thus were not competent
to establish as a matter of law that the hospital complied
with applicable standard of care; affidavits stated standard
of care for the patient generally but did not address care or
treatment necessary to prevent condition, and did not specify
when or how the nurses assigned to the patient properly
assessed her condition, did not specify neuromuscular status
assessed by the physical therapist, areas of deficiency, or
what the therapeutic intervention was, and failed to
articulate what physician’s orders were regarding physical
therapy or how they were complied with.
Who is to blame? Contributory and Comparative
Negligence, Respondeat Superior and Corporate Negligence
Another aspect to consider is to analyze who is to blame
for this particular incident. Mary had been instructed several
times prior to the incident that she is not to get up out of
the chair and ambulate without assistance. Since her intact
cognitive status had been established, there is not reason to
believe that she is not able to understand the consequences of
this action. On the other hand there is also no reason not to
believe that the reason why she got up was that she could not
reach the call light and that no one was there to assist her.
If this incident happened in a state that recognizes
contributory negligence, then Mary must be held partly
responsible for her actions. The facility is responsible for
Jill’s action under the doctrine of respondeat superior. Jill
was performing her duties within the scope of her employment,
and therefore, the facility is responsible for Jill’s actions.
Issue No. 2: Falsification of Documents
The medical record is a very important document in the
facility in its documentation of appropriate patient care. It
is also its strongest defense against potential negligent
action. The lack of a complete medical record puts the
facility in a very precarious situation when it tries to
defend itself against accusations of improper and
inappropriate care. Some courts will allow the jury to resolve
ambiguities in the patient’s medical record in favor of the
patient.5
Incomplete records may prove to also be detrimental to a
facility’s defense against a lawsuit. There will be questions
in the credibility of the medical record if the entry is
written a few days or weeks after the actual treatment was
performed. More suspect would be the addition of information
regarding the patient’s care after the patient had sustained
an injury in the facility.
In this case, the addition to the
record appears to be more to establish a defense rather than
to reflect the actual treatment performed. In Foley v.
Flushing Hospital and Medical Center,6 the physician amended
the patient’s medical record to show that the medication was
given orally after the father complained of injuries caused by
the injection of medication. The change in the record was
dated to show when it was made, and there was no attempt to
conceal the change. Nonetheless, the change, along with the
proof of the injury, was found to constitute sufficient
evidence to go the jury on the question whether the medication
was administered orally or by injection.7
The Facility
Administrator and the Director of Nursing (Betty and Edith)
may have been thinking of the reasons given above as the
reason why a mere addition to Jill’s documentation may not be
sufficient defense for the facility. However, is the
alternative- the complete alteration of a part of a patient’s
medical record- legal? If the plaintiff can show that the
record was altered, the plaintiff may be able to destroy the
credibility of the entire medical record. In the case of Pisel
v. Stamford Hospital,8 a nurse who falsified the patient’s
chart to show that she had checked the patient’s heartbeat
every half-hour made that entry in retrospect because she knew
that procedure was good nursing practice. The court held in
the subsequent negligence action that: In addition to all the other evidence in the case, the
significance of the revised medical hospital record should not
be overlooked. Although the defendant understandably attempted
to minimize what was done by characterizing the action as
merely one of ordering expanded notes and by attributing it to
poor judgment, the trier (of fact) was not required to be
charitable. An allowable inference from the bungled attempt to
cover up the staff inadequacies was that the revision
indicated a consciousness of negligence.
Edith is guilty of illegal alteration of medical records,
which is a federal offense. Whether the intent of the changes
made in the record was to more clearly describe and document
the sequence of events surrounding the incident, the fact
remains that Edith destroyed the previous medical record
entries and replaced it with new ones.
Conclusion
This case study attempted to present to the reader a
systematic ethical and legal analysis of a specific practice
issue in physical therapy. The use of a multi-step process as
presented in this paper may be used by other practitioners as
a template for analyzing practice issues involving their
respective professions.
References
1. Swisher L and Krueger-Brophy C. Legal and Ethical Issues
in Physical Therapy. Boston MA,Butterworth-Heinemann, 1997.
pp. 21-27.
2. Swisher L and Krueger-Brophy C. Legal and Ethical Issues
in Physical Therapy. Boston MA, Butterworth-Heinemann, 1997.
pp. 36-37.
3. McAvenue v. Bryn Mawr Hospital, (Superior Court of PA,
1976).
4. Griffin v. Methodist Hospital. Court of Appeals in
Texas, 1997.
5. Roach, et. al. Medical Records and the Law.
Gaithersburg, MD,Aspen Publications, 1994, p.18.
6. Roach, et. al. Medical Records and the Law.
Gaithersburg, MD, Aspen Publications, 1994, p.24.
7. Roach, et. al. Medical Records and the Law.
Gaithersburg, MD, Aspen Publications, 1994, p. 23.
8. Roach, et. al. Medical Records and the Law.
Gaithersburg, MD, Aspen Publications, 1994, p.36. |
